Basic structure of Pakistan Constitution exhaustively discussed

Islamabad
A long running debate on whether the Pakistan Constitution has the basic structure, or fundamental or salient features came under exhaustive discussion in the recent judgments on the 21st and 18th amendments with the judges expressing divergent views on it.
The verdict said after a considerable discussion on the subject it leaves one in no doubt that the Supreme Court has right from the 1973 case of Ziaur Rahman to Wukla Muhaz and Pakistan Lawyers Forum (supra) consistently held that the basic structure theory has been recognised only to the extent of identifying salient or fundamental features of the Constitution.
However, the theory has never been accepted or applied as a ground for striking down a constitutional amendment. The apex court has consistently refused to follow the position taken by the Indian Supreme Court on the subject, he wrote.
Justice Jawwad S Khawaja said in his judgment that in the Pakistani context, judges do not need to make subjective speculations about the basic structure of the Constitution in order to exercise judicial review over constitutional amendments.
"We possess, in the shape of the Preamble to the Constitution, the surest possible grounds for examining constitutional amendments," he said.
The preamble is a charter comprising nine commands ordained by the people of Pakistan for all instrumentalities of the State, including the Parliament and the Judiciary. It says it is the will of the people to establish an order.
In his separate verdict, Justice Saqib Nisar wrote that he would confine himself to consideration of the most fundamental issues involved, including in particular the doctrine of the basic structure, as developed by the Indian Supreme Court.
This doctrine is now well entrenched in the constitutional law of India. It is on such basis that the Indian Supreme Court has asserted, and exercised, a jurisdiction to review amendments to the Constitution, and to strike down any amendment that sought to alter or amend the "basic structure in a manner that offended judicial sensibilities.
The judge wrote that the Pakistan Supreme Court has considered this doctrine in the past, but has always so far refused to incorporate it into the constitutional law. "We have, in these petitions, been invited yet again to adopt the doctrine. For the reasons herein after set out, for my part, I would refuse this invitation.
Justice Saqib Nisar said that the basic structure doctrine, as it has developed and evolved, in effect means that the Constitution contains an unidentified and constantly shifting "supra-constitution" within itself, which renders certain provisions of the Constitution un-amendable (and those provisions are themselves unknown and unknowable until the Supreme Court identifies them on a case by case basis).
If at all the intent had been to make certain provisions of the Constitution un-amendable, it would have been the simplest thing to say so expressly and that is what is to be found in numerous constitutions in other states including Germany (which is relevant since the originator of the basic structure theory was a German jurist), the judge wrote.
The petitioners' lawyers drew attention to such constitutions, but surely the point goes decisively against their case. It was precisely because the people of Pakistan did not want the Constitution to be immutable in any manner or to any extent that no provision was entrenched in the manner adopted in other constitutions.
Justice Qazi Faez Isa wrote that from the review of the precedents of the Supreme Court it is noticeable that the Constitution is stated to have certain basic or salient features, all of which are derived from the text of the preamble of the Constitution; reference has also been made therein to the Objectives Resolution that contains similar words.
The preamble has been derived from the Objectives Resolution, but with a very important difference. The opening words of the Resolution state that sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan through its people whereas the preamble states that, sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan.
The judge wrote that the substitution of the inanimate 'State' with 'the people' is immensely significant and reveals the nucleus of the Constitution. And 'the people' take precedence over their representatives because what follows (in the preamble) "is the will of the people of Pakistan to establish an order - wherein the State shall exercise its powers and authority through the chosen representatives of the people."
The people, each and every member of the nation, effectually enacted the preamble and then granted to their chosen representatives, some, and not all of the State's powers and authority. The people made it absolutely clear that they did not want their representatives to dilute their fundamental rights. It was categorically stated that the fundamental rights "shall be guaranteed."
Justice Sarmad Jalal Osmany said that in the case of Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426), it was held by majority inter alia that the question as to the basic structure of the Constitution is a question of an academic nature, which cannot be answered authoritatively with a touch of finality. Basic structure as such is not specifically mentioned in the Constitution but the Objectives Resolution when read with other provisions of the Constitution reflects salient features of the Constitution highlighting federalism and parliamentary form of government blended with Islamic provisions.
The judge wrote that in the case of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263), it was held that the basic structure was a representative form of government, Islamic concept of democracy and independence of judiciary. However, this theory could not be adopted to declare any provision of the Constitution as being ultra vires of any of the fundamental rights. On the contrary, it was observed that when there is a conflict between two Articles of the Constitution, efforts should be made to resolve the same by reconciling them and that interpretation should be accepted, which is closest to the basic structure ie. independence of judiciary etc.
Justice Osmany said that it was opined in different judgments that indeed there is a basic structure/salient feature or whatever other term may be used ie. the constitutional conscience etc. that is embodied in the Objectives Resolution particularly the declaration that sovereignty over the entire universe belongs to Almighty Allah alone.
In his judgment, Justice Asif Saeed Khosa wrote that while recognising some salient features of the Constitution reflecting the present aspirations of the people, which aspirations are susceptible to change if the people so wish, for the purposes of interpretation of the Constitution, particularly in the context of Pakistan's present constitutional history and developments, he has also not felt persuaded to accept and apply the academic legal theory of basic features or basic structure whether invoked conceptually, textually or contextually. In the context of the Constitution the only limitations to the Parliament's amendatory powers are political limitations and not judicially enforceable limitations.
Justice Dost Muhammad Khan said that the amendments made in the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014, amount to enacting a new law; the same was done in clear violation of the absolute prohibition, contained in Article 8 of the Constitution. Therefore, the new law introduced through these amendments and a proviso, inserted in Article 175, amounts to distorting the fundamental/basic structure of the Constitution.
Justice Umar Ata Bandial wrote that the apex court has jurisdiction to examine the validity of constitutional amendments on the touchstone of limitations imposed on the amending power of the Parliament by the salient features of the Constitution.
Justice Ejaz Afzal Khan and Ijaz Ahmed Chaudhry said in their judgments that the apex court has jurisdiction to examine the vires of any constitutional amendment and annul it if it impairs, undermines or alters any of the parts forming the basic structure of the Constitution; there is nothing in the 18th amendment as could impair, undermine, or alter any of the parts forming the basic structure of the Constitution.